Before you read this, it might help to know that Kentucky’s gubernatorial election will be this November.
Many years ago, a woman who occupied the position of Kentucky state auditor under a Democratic governor was opposed to a zoning variance that would have allowed a Cracker Barrel restaurant to be built near her farm. She pursued legal action. Her attorney on that matter called her many times at work–that is, at her government office. When she wasn’t available, an employee took phone messages. The scraps of paper with these phone messages on them still exist. Including the Cracker Barrel messages, there are over 19,000 phone messages altogether.
Brett Hall, a blogger who used to be the communications director for sitting governor Ernie Fletcher (a Republican), started posting bits and pieces of these phone messages on his blog last week. When asked where he got these messages, he said at first that they came to him via an open records request.
Later, he admitted that this was a lie.
The Louisville Courier-Journal gives a complete rundown here.
If blogger Brett Hall didn’t get those phone messages from an open records request, how did he get them? One assumes that the messages were leaked to him by someone in the administration who felt that political hay could be made of them.
A question now being raised in Kentucky is whether a crime was committed in leaking the phone messages.
Two questions of principle from an open records perspective:
Are phone messages such as those that were leaked to Brett Hall exempt from disclosure under Kentucky’s law?
The Open Government Guide of the Reporters Committee for Freedom of the Press says that under Kentucky law, there is a broad definition of “public record”:
“Public record” means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
However, if it is determined that phone messages don’t count as public records under Kentucky’s current law, the more important underlying question (abstracting away from the current political tensions) is whether such records should be exempt.
I can imagine a number of circumstances in which phone messages could be an important part of reporters and citizens figuring out their government–if a large donor called your governor frequently in the days leading up to your governor proposing a bill that favors that donor, and this could be documented through phone messages, wouldn’t you want to know?